Impact of New “First to File” Patent Law

Under pressure from lobbyists for Big Business and Pharmaceutical companies, Congress passed, and Obama signed, the America Invents Act (AIA) into law in September 2011. The AIA changed the long-standing “first to invent” standard to a “first to file” standard. Before the AIA, when two inventors disagreed over who owned the invention, patent law favored the one who could prove they first conceived of the idea. Now, the new legal standard is a simple USPTO filing date. Under the new law, even if an inventor has been working on a concept for years, and has the data to prove their first conception of the idea, if another party files a patent application first, the prior inventor loses their rights.

Small business and individual inventors argued against the bill in Congress, making the point that they would be disadvantaged compared to larger companies who could afford multiple patent attorneys and applications. Large companies can afford to file applications quickly for small changes in product or manufacturing design. Small companies can typically only afford to file and prosecute applications for ideas they have taken the time to fully flesh out and test.

This new “first to file” standard goes into effect March 16, 2013. We highly encourage inventors to contact us to discuss filing potential patent applications before this date.